MsLods’ news round-up: law + technology


US: Music publishers sue ISP Cox for not kicking people off the Internet.  | EFF |

In Google Books appeal, judges focus on profit and security. | Gigaom |

Danish court orders a UK company to block Danish IP addresses. | EDRi |

Copyright law as a tool for state censorship of the Internet. | EFF |

UK music industry seeks review of law allowing fans to copy music. | Guardian |

Blocking piracy websites is bad for Australia’s digital future. | The Conversation |

Defamation & media law

Dr Roland Von Marburg sues Facebook for defamation. | SMH |

Is Australia an emerging secret state? | JournLaw |

African court delivers landmark judgment on criminal libel. | MLDI |

Privacy & information security

UK: Investigatory Powers Tribunal rules GHCQ mass surveillance program TEMPORA is legal in principle. | Privacy International |

Government pulls bill to abolish Information Commissioner. | Open and Shut |

Boost for terror law monitor powers proposed in new Bill. | IT News |

Data retention bill fails scrutiny test. | IT News |

ASIC to lobby government for metadata access. | IT News |

Intelligence authorities ‘fail to understand data’, says ISP. | The Guardian |

My post on what’s missing from the government’s new site on data retention. | MsLods |

Want to know more about data retention? I’ve updated my “storify” on Australia’s controversial data retention bill:

Committee calls for contributions to data retention inquiry.  | APH |  Register intention to lodge a submission by 8 December. Submissions due 19 January.

Freedom on the Net Report 2014 | Freedom House |

Australians’ appetite for data & content continues to grow  – Communications Report 2013-14 | ACMA |  

Gregarious and direct China’s web doorkeeper. | New York Times |

Aussie bitcoin start up CoinJar moves to the UK. | Business Spectator |

Social media

Navigating the legal challenges of exploiting social media and user-generated content. | Attorney-General’s Office (UK) |

22 people had to sign off on Mitt Romney’s campaign tweets. | USA Today |

Twitter takes aim at trolls – and promises more. | Boing Boing |

Social networks face fines for failing to remove bullying content. | ZDNet |

Scotland laws down the law on social media crime and revenge porn. | Wired |

UK: Man jailed for WhatsApp ‘revenge porn’ after posting images of woman online. | Guardian |

7 December 2014

MsLods’ news round-up: law + technology

So what’s missing from the Australian government’s new website on data retention?

Last Friday, I stumbled across a new section of the Attorney-General Department’s  website “explaining” the government’s controversial data retention Bill.

And I found a few things missing …

Data retention does not provide new powers for agencies to access metadata. It simply obliges telecommunications companies to retain a limited set of records for two years

What’s missing?

  • There is little “simple” or “limited” about this proposal for mass surveillance of all Australians.  Just a few weeks ago, the Parliamentary Human Rights Committee was scathing in its criticism of the Bill.
  • It is not helpful to say the Bill proposes a “limited” set of data when the data is yet to be defined and will only be defined in Regulations.  Indeed, the Scrutiny of Bills Committee recommended the data set be defined in primary legislation itself and not left to Regulations.
  • The obligation is not simple or limited  when there is an express requirement in the Bill to create data when the service provider does not already capture data that falls within the (yet to be defined) data set. (See proposed section 187A(6) of the Bill).

More than 25 countries around the world have implemented data retention laws similar to those proposed by the Australian government

What’s missing?

  • Any mention of the fact that the EU Court of Justice ruled in April this year that the EU Data Retention Directive was invalid and …

entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary

  • As Stilgherrian reported last week Australia’s data retention plans are looking increasingly out of touch.   “To say that the West is going the way of data retention is a serious misrepresentation.” (As I set out in a recent blog post)
  • Silicon Valley has been damaged by the Snowden revelations. Senator Wyden has made the case that the spying has hurt the American economy.
  • United Nations human rights expert concluded in a recent report that mandatory data retention “amounts to a systematic interference with the right to respect for the privacy of communications”, and therefore “it is incompatible with existing concepts of privacy for states to collect all communications or metadata all the time indiscriminately”.

International experience indicates that the cost of mandatory data retention schemes is small

What’s missing?

  • Well, any evidence …  In the UK, an impact assessment estimated that the cost of retaining IP addresses (not the whole data set) at nearly $50 million (AUD)
  • In 2010, Digital Rights Ireland reported:

    Several network operators said the need to invest in retention infrastructure had caused them to delay or abandon improvements to national networks.
    Deutsche Telekom claimed it had spent €5.2 million on implementation of retention infrastructure and €3.7 million a year to facilitate about 13,000 call data requests and 6,500 internet data requests. Other operators said they had spent in excess of €4 million setting up systems for providing access to stored data.

Warrants are typically reserved for the most intrusive powers, such as the power to use force to enter a home, to intercept phone calls, or to arrest a person. Many powers, including access to metadata, simply do not rise to that level.

What’s missing?

  • If “metadata” is not intrusive, why, as Josh Taylor has reported, won’t Senator Brandis provide access to his own communications data?
  • 11 countries in the EU require some form of judicial authorisation before access to “metadata” is provided.
  • Earlier this month, the Human Rights Committee recommended that a warrant should be required for “metadata” access.

Law enforcement and national security agencies suggest that a data retention period of two years is necessary to maintain our agencies’ investigative capabilities

What’s missing?

  • Retention periods typically are between 6 months and 12 months in the EU.
  • In the UK, for example, a 2011 report revealed that, over a 4 year period, 74%+ of disclosures to law enforcement agencies, where the age of data being sought was known, related to data that was less than 3 months old.

The government will reduce the number of agencies permitted to access metadata. Only agencies that have a clear need for such access and well-developed internal systems for protecting privacy, such as law enforcement and intelligence agencies will be able to access the data. Data must be reasonably necessary for the purposes of investigating criminal offences and other permitted purposes.

 What’s missing?

  • The Bill only limits the agencies that can automatically access metadata. It does not significantly limit the very broad range of agencies that can apply to access metadata (see proposed new clause s 176A). Proposed section 176A will allow a broad range of agencies ranging from ASIC to local councils and the RSPCA to apply for access to data.
  • There is no definition in the legislation about “well-developed internal systems for protecting privacy”.  The Minister is simply  to have regard to whether the agency who wants access to metadata is required to comply with the Australian Privacy Principles or a comparable scheme.  Just this week, the Attorney-General Department itself asked for return of improperly redacted submissions which revealed individual’s personal information.

Will data retention be used for copyright enforcement? The Telecommunications (Interception and Access) Act 1979 only allows access for limited purposes, such as criminal law enforcement matters. Breach of copyright is generally a civil law wrong. The proposed data retention regime does not change this in any way.

What’s missing?

  • If data is in the possession of a party it can be compelled to provide it to a litigant by coercive court processes such as discovery or subpoenas. As Ben Grubb has reported, data retention would be a “boon for private investigators” and lawyers acting for clients in a range of disputes.
  • The Australian Federal Police admitted that legislation for new mandatory data retention obligations on Australian telecommunications companies could be used to fight online copyright infringement.
  • The government will need ISPs to retain (source) IP addresses if it wants to introduce a notice scheme where ISPs are forced to police online copyright infringement.  Josh Taylor has reported on how film studios want to use data retention to crack down on piracy.

many member states have implemented the EU data retention directive by widening its scope and retaining data that was not retained in the past, often allowing it to be used for more purposes than outlined in the directive, such as for civil litigation on copyright in the UK. Such expansion is referred to as “mission creep” by privacy advocates.


Note: the above italicised extracts from the government’s new “explainer” on data retention can be found on the following pages:

Further resources:  commentary and analysis on Australia’s controversial data retention bill:





So what’s missing from the Australian government’s new website on data retention?

MsLods’ news round-up: law + technology


No evidence that the Copyright Alerts have had a significant impact on piracy rates in the US. | Torrentfreak |

Hollywood demands tougher penalties for Aussie pirates. | Torrentfreak |

Australian ministers likely to recommend ISPs to send copyright notices and block piracy sites. | SMH |

Can graffiti be copyrighted? | The Atlantic |

When the time comes we’ll need to step up the fight against TPP’s secret, anti-user agenda. | EFF |

Will Netflix end piracy in Australia? | Televised Revolution |

Rightscorp nails 30,000 users for piracy in one month, still loses money. | Ars Technica |

How copyright law could get you killed. | Vox |

Controversial ‘Innocence of Muslims’ ruling to be reconsidered by appellate court. | The Hollywood Reporter |

Defamation & media law

Australian journalist fears rough justice in Thai defamation case. | The Citizen Web |

Murder trial with a twist: defamation jury to decide if Gordon Wood killed Carolyn Byrne. | SMH |

Ireland: Libel tourism could become our newest cottage industry. | Irish Times |

Google’s French arm faces daily fines over defamatory article. | The Guardian |

Privacy & information security

Cross-party federal committee scathing in its criticism of Abbott government’s mandatory data retention plans. | The Guardian |

Update on how ‘the west’ is backing away from data retention. | MsLods |

Why privacy matters even if you have nothing to hide: Daniel Solove. | The Chronicle Review |

Collection of resources, commentary and analysis on Australia’s controversial data retention bill. | Storify (by me) |

Department of Immigration and Border Protection unlawfully disclosed personal information of asylum seekers. | OAIC |

When Fitbit is the expert witness. | The Atlantic |

UK ISPs have agreed to filter terrorist and extremist material at the government’s behest. | Gigaom |

Mt Martha woman snapped sunbaking in g-string by real estate drone. | Herald Sun |

684,000 households are paying for content through international stores. | Choice |

Industry and government say ‘collect everything’. History suggests this is a bad idea. | Slate |

Social media

Juries and social media in the technological age. | Supreme Court of Victoria |

Filmakers think Twitter is ruining the Academy Awards. | The Daily Dot |

Does Twitter have a secret weapon for silencing trolls. | The Verge |

22 November 2014

MsLods’ news round-up: law + technology

Update on how ‘The West’ is backing away from data retention

Data retention – EU experience

Country Retention Period Authorisation required to access “metadata” Status of Telecommunications Data Retention Regime
Australia 2 years No judicial oversight. Data retention bill has been introduced into Parliament.
Austria Ruled Unconstitutional
Belgium Between 1 year and 36 months for ‘publically available’ telephone services.No provision for internet-related data. Access must be authorised by a magistrate or prosecutor. Under challenge
Bulgaria 1 year.Data which has been accessed may be retained for a further 6months on request. Access only possible on the order of the Chairperson of a Regional Court Ruled Unconstitutional
Cyprus 6 months Access must be approved by a prosecutor if he considers it may provide evidence of committing a serious crime.A judge may issue such an order if there is a reasonable suspicion of a serious criminal offence and if the data are likely to be associated with it. Ruled Unconstitutional
Czech Republic Ruled Unconstitutional
Denmark 1 year Access requires judicial authorisation; court orders are granted if application meets strict criteria on suspicion, necessity and proportionality Session logging ceased 2014
Estonia Access requires permission of a preliminary investigation judge in force
Finland 1 year Subscriber data may be accessed by all competent authorities without judicialAuthorisation. Other data requires a court order. Under review after the CJEU judgment in April
Germany 1 year Ruled Unconstitutional.No mandatory data retention.In the new Telecommunication Act enacted in 2012 the provisions on data retention were simply deleted and not replaced by a new data retention concept.
Greece 1 year Access requires judicial decision declaring that investigation by other means isimpossible or extremely difficult. Still in force
France 1 year Police must provide justification for each request for access to retained data and must seek authorisation from person in the Ministry of the Interior designated by the Commission nationale de contrôle des interceptions de sécurité. In force
Spain 1 year Access to the data by the competent national authorities requires prior judicialauthorisation. In force
Hungary 6 months for unsuccessful calls and 1 year for all other data Police and the National Tax and Customs Office require prosecutor’s authorisation. Prosecutor and national security agencies may access such data without a court order Further constitutional challenge is being prepared as of April 2014
Italy 2 years for fixed telephony and mobile telephony data,1 year for internetaccess, internet email and internet telephony data Access requires ‘reasoned order’ issued by the public prosecutor. In force
Lithuania 6 months Authorised public authorities must request retained data in writing.For access for pre-trial investigations a judicial warrant is necessary In force
Latvia 18 months Authorised officers, public prosecutor’s office and courts are required to assess ‘adequacy and relevance’ of request, to record the request and ensure protection of data obtained In force
Luxembourg 6 months Access requires judicial authorisation. Under review.Luxembourgish Justice Minister on the day of the CJEU judgment announced that a detailed analysis of possible consequences for the national law will be undertaken.
Malta 1 year for fixed, mobile and internet telephony data,6 months for internet access and internet email data Requests must be in writing – Malta Police Force; Security Service In force
Netherlands 1 year Access must be by order of a prosecutor or an investigating judge Following CJEU judgment it was reported that various parties in parliament have already stated that the data retention provisions should be abolished completely or in part, and further challenges seem likely.
Romania (6 months under the earlier annulled transposing law) Ruled Unconstitutional (twice)
Poland 2 years Requests must be in writing and in case of police, border guards, tax inspectors, authorised by the senior official in the organisation. Under challenge
Portugal 1 year Transmission of data requires judicial authorisation on grounds that access is crucial to uncover the truth or that evidence would be, in any other manner, impossible or very difficult to obtain. The judicial authorisation is subject to necessity and proportional requirements. in force
Slovenia 8 months for internet related and 14 months for telephony related data Access requires judicial authorisation. Ruled Unconstitutional.Ordered that data collected under the data retention law be deleted
Slovakia 12 months, 6 months for Internet services Requests must be in writing. Ceased following judgment of European Court of Justice.Records deleted.
Sweden 6 months Under Challenge by ISPUp to 2013 CJEU challenged Swedish govt for their delay in implementing the Directive due to domestic controversy
UK 1 year Access permitted, subject to authorisation by a ‘designated person’ and necessity and proportionality test, in specific cases and in circumstances in which disclosure of the data is permitted or required by law. DRIP – Under Challenge
Ireland 2 years for fixed telephony and mobile telephony data, 1 year for internet access, internet email and internet telephony data No. Requests to be in writing from police officer/military over specified rank & tax/customs official over specific grade. Under Challenge
Switzerland[i] Under Challenge
Norway N/A N/A No mandatory data retention regime


  • EU: 11 Member States require judicial authorisation for each request for access to retained data.
  • EU: In 3 Member States judicial authorisation is required in most cases.

Further reading

Collection of resources and commentary on Australia’s data retention bill:

Successful first step in challenging Swiss Data Retention, 2 July 2014, available at:

 European Commission on data retention:

Resources relating to communications data retention in the EU:

Evaluation Report on the Data Retention Directive (2011)

 National legal challenges to the data retention directive:

Data retention held unconstitutional in Slovenia:

Boehm & Cole study on data retention after the judgment of the Court of European Justice:

Finland must revise its data retention laws:

In the US:

In Silicon Valley, senator calls for ending American “digital dragnet”: 

Facebook, Google and Apple lobby for curb to NSA surveillance:


Update on how ‘The West’ is backing away from data retention

MsLods’ news round-up: law + technology


Attorney-General’s Department censors public view on piracy. | ZDNet |

Can there be copyright in one’s own bottom? And what about a bottom pose? | IPKat |

Case of Sherlock Holmes copyright closes after US Supreme Court refuses appeal. | The Guardian |

Belgian and French copyright laws ban photos of certain public buildings. | EU Observer |

Aereo shutting down operations, closing Boston office. | BetaBoston |

How should the Marrakesh Treaty for the blind & visually impaired be implemented in Australia? The AGD is seeking submissions:

Defamation & media law

Singapore PM wins defamation case against blogger. | SCMP |

Public interest journalism is under attack on multiple fronts. | PIJF |

Responsible use of drones should be exempted from media laws: Goldberg. | JournLaw |

George Brandis attempts to reassure reporters – by undermining journalism. | The Guardian |

Privacy & information security

The Australian dusts off the “Must resist any move to give a right to sue over privacy” file. |  Open and Shut |

UK: Police misuse of RIPA “metadata” powers is systemic, MPs told. | The Guardian |

We don’t have any pre-existing metadata laws: Brandis. | ZDNet |

Collection of resources, commentary and analysis on Australia’s controversial data retention bill. | Storify (by me) |

British spies are free to target lawyers and journalists. | The Intercept |

Metadata collection comes under fire in new UN draft anti-surveillance resolution. | Gigaom |

The Dads of Tech. | The Baffler |

Feds shutter illegal drug marketplace Silk Road 2.0, arrest 26 year-old San Francisco programmer. | Forbes |

New Zealand: censor eyes “global mode” Internet access. | The New Zealand Herald |

Social media

Facebook: we are being slurped 24% more by government this year. | The Register |

Twitter exec says it’s not about the money. | LA Times |

Saudi lawyers jailed, banned from media over tweets. | Yahoo News |

Navigating a world of silos. | Paul Wallbank |

9 November 2014

MsLods’ news round-up: law + technology

MsLods’ news round-up: law + technology


Perth folk: Sunday 2 November you can hear Steve Dalby, Senator Ludlam & Rebecca Giblin discuss copyright at the Disrupted Festival of Ideas. (And it’s free!) 

Google removes results linking to stolen photos of Jennifer Lawrence nude. | The Guardian |

Not our kind of club. | iiNet blog |

Australian ISP iiNet takes a stand against copyright trolling by producers of Dallas Buyers Club. | Techdirt |

Judge issues Aereo injunction, stops short of enjoining time shifting. | THR |

The soaring financial costs of blocking pirate sites. | TorrentFreak |

Copyright in the Trans-Pacific Partnership echoes past mistakes. | The Conversation |

Defamation & media law

Offences for disclosing information about covert operations. | Parliament of Australia |

UK: Libel cases prompted by social media postings rise 300% in a year. | The Independent |

Barry Spurr v New Matilda: the facts, the law and the porridge: Richard Ackland. | The Guardian |

Australia’s war on whistleblowers must end. | The Guardian |

Judge ices cake decorators’ defamation case. | SMH | 

Privacy & information security

Metadata: Privacy Commissioner cannot monitor all those with access.  | The Guardian |  

Calls for urgent reform of metadata access as government reports reveal disparity. | SMH |

Will metadata musings ever mature beyond paranoid fears? – Stilgherrian | ZDNet |

Research shows mass surveillance fails drastically in striking balance between costs and benefits to society. | Techdirt |

BBC uses anti-terror spy powers to track down TV licence fee dodgers. | The Daily Mail |

Website blocking is not internet filtering: Australian government. | ZDNet |

The Sky is Rising: Data shows wealth of opportunities for digital content. | DiSCo Project | 

UK: Internet service providers must help crack down on fake goods, High Court rules. | The Guardian |

NZ: Why Gigatown is not a waste of money. | Bill Bennett |

Social media

Trolls, threats, the law and deterrence. | Paul Bernal |

The labourers who keep dick pics and beheadings out of your Facebook feed. | Wired |

Ferrari hit with lawsuit for taking over Facebook fan page. | Ars Technica |

26 October 2014

MsLods’ news round-up: law + technology

MsLods’ news round-up: law + technology


One of the big news items in IP this past week was Wikileaks’ leak of the Intellectual Property chapter of the Trans-Pacific Partnership negotiations. Some of the analysis:

  • Leak of controversial TPP IP Chapter shows US still pushing for draconian copyright provisions. | Australian Digital Alliance |

  • New leak of TPP consolidated text on intellectual property provides details of pandering to drug companies and publishers. | KEI |

And a reminder: Andrew Robb to host TPP Trade Ministers’ meeting in Sydney 25 – 27   negotiations to include intellectual property provisions.

Round and round like a skipping record: Australia’s FTA IP negotiations under fire. Again. | Australian Digital Alliance |

Chilling Effects Clearinghouse, the world’s leading resource for DMCA enforcement transparency, has been revamped:

Gold Coast film convention told movie pirates put a *million* Aussie jobs at risk. | Gold Coast Bulletin |   (And piracy will soon be a “mortal sin” ….)

Defamation & media law

 British police’s use of Ripa powers to snoop on journalists to be reined in. | The Guardian |  

Five reasons terror laws wreck media freedom and democracy. | The Conversation |

The links between Hollywood, Heat and the Irish High Court. | The Irish Times |

Journalists have no choice but to fight back, because if they don’t they will become irrelevant.  

Privacy & information security

iiNet on Data Retention: “Not Necessary or Proportionate”. | Gizmodo |

Abbott government data storage plans lack privacy safeguards, says iiNet. | The Guardian |

Brandis’ callousness on data retention beggars belief. | Business Spectator |

In Silicon Valley, senator calls for ending American “digital dragnet”. | Ars Technica |  

Excellent (frightening) podcast on data retention with Senator Ludlam, John Lindsay and John Stanton | Cross Talk – Phil Dobbie |  

Privacy advocates say Australia going further than anyone else on data retention. | The Guardian |  

Electronic mass surveillance fails—drastically. | Just Security |

Top tech execs: end mass surveillance to boost digital economy. | The United States Committee on Finance | 

UN report finds mass surveillance violates international treaties and privacy rights. | The Intercept |

The FBI Director’s evidence against encryption is pathetic. | The Intercept |

The state wants to spy on us but is it up to the job? | The Guardian |

American website Intercept reveals secret activities of Australian spy agency. | SMH | 

Who wants to be forgotten? |   |

Asylum seekers’ personal details stolen in second immigration data breach. | The Guardian |  

The best part of the documentary ‘Citizen Four': Snowden’s coming out week. | Forbes |

Chicago’s smart city: from open data to rat control. | ZDNet |

Women in computing: the 60s pioneers who lit up the world of coding. | The Guardian | 

Australia’s most powerful women in technology. | Women’s Agenda |

The dark market for personal data. | The New York Times |

#Gamergate shows tech needs far better algorithms. | TechCrunch |

Egg freezing: a sign your workplace is a dystopian hell-hole. | Hunt Gather Love |

Episode 576: When women stopped coding. | NPR |

Social media

“Twitter is not just a timeline” What’s wrong with Twitter’s latest experiment with broadcasting favorites, by . | Medium |

LinkedIn sued for furnishing reference reports on users. | The Recorder |

First court date set in case to ban Twitter and Facebook in Egypt. | Mada Masr |

Mastercard to access Facebook user data. | SMH|

Can Ello get by on a manifesto and a smiley? | ZDNet |

To reach China, LinkedIn plays by local rules. | The New York Times |

Not on a social network? You’ve still got a privacy problem. | Wired |

113-year-old woman lies about her age to get a Facebook account. | Metro UK |

19 October 2014

MsLods’ news round-up: law + technology